Opinion
Civil Action No. 04-132.
November 1, 2004
MEMORANDUM
1. FACTUAL AND PROCEDURAL BACKGROUND
This matter was referred to me by the Honorable Timothy J. Savage to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 by Order dated October 5, 2004, and entered October 6, 2004. A Summary Trial was held before me on October 13, 2004.
Plaintiffs Orton Bellamy and Shawn D. Merke instituted this action against Cheltenham Township and Officer Daniel Farley of the Cheltenham Police Department alleging violations of 42 U.S.C. § 1983, related civil rights claims and pendent state tort claims. Plaintiffs allege that while shopping in the Ashley Stewart Store in the Cheltenham Mall in Cheltenham Township, Montgomery County, Pennsylvania, they were approached by Cheltenham Township Police Officer Farley who asked to speak to them. See N.T. 10/13/04, 17-21. Plaintiffs were escorted out of the store by Officer Farley into the Mall where more officers arrived on the scene. Id. at 22, 51, 55. Officer Farley asked Plaintiffs for identification; however, he would not accept as identification Mr. Bellamy's badge which identified him as the Chairman of the South Carolina Probation, Parole and Pardon Board. Id. at 22-24, 56. Plaintiffs were informed that they could not leave Officer Farley's presence and that they had to remain stationary and quiet. See N.T. 10/13/04, 26-27, 61, 108, 127, 136. Plaintiffs were advised that they were being held because Officer Farley received a report that "there was a robbery or something". Id. at 24. He had received a radio communication that a robbery had been committed in the Ashley Stewart Store in Philadelphia, and the suspected robbers were in the Cheltenham Ashley Stewart Store. Id. at 74. The alleged perpetrators were only described as "two black guys". Id. at 24, 45, 76. At the conclusion of the investigation of the alleged attempted robbery, Plaintiffs were not informed that they were permitted to leave; rather, they asked of Officer Farley whether they were free to go. He then told them that they could leave. See N.T. 10/13/04, 30. Upon their release, Plaintiffs completed their shopping at the Ashley Stewart Store and Value City before leaving the Cheltenham Mall.
Plaintiffs agreed to dismiss the complaint against Cheltenham Township, and, by Order dated October 12, 2004, Judge Savage dismissed the action as to Cheltenham Township only. Consequently, Counts Two, Three, Seven, and Eight of the Complaint were dismissed, and the Defendants' Motion for Summary Judgment was denied as moot as to those Counts. Defendants' Motion for Summary Judgment with respect to Counts One, Four, Five, Six, and Nine was denied. The remaining counts pertain to Officer Farley: § 1983; § 1988; false arrest; false imprisonment; and punitive damages.
Officer Farley maintains that this detention of Plaintiffs was an investigatory detention or pedestrian stop, also known as a Terry stop. Id. at 152. He asserts that there was no constitutional violation, and he is entitled to qualified immunity.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
2. Analysis
a. Section 1983 Claim 42 U.S.C. § 1983 provides a remedy for those individuals who have been deprived of their constitutional rights under color of state law. Plaintiffs claim damages alleged to have been sustained due to the deprivation, under color of state law, of rights secured to them by the Fourth and Fourteenth Amendments of the United States Constitution. Specifically, Plaintiffs allege that Officer Farley subjected them to unlawful search and seizure and violated their right to an equal protection of the laws by subjecting them to this unwarranted search and seizure because of their race
b. Investigatory Stop
The Fourth Amendment of the United States Constitution prevents "unreasonable searches and seizures". U.S. Const. Amend. IV. Nonetheless, the United States Supreme Court has established that
a police officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop (internal citations omitted). Illinois v. Wardlow, 538 U.S. 119, 123, 120 S.Ct. 673, 675-676 (2000).
"Reasonable suspicion . . . is dependent upon both the content of the information possessed by police and its degree of reliability. Both factors, quantity and quality, are considered in the `totality of the circumstances'" that must be taken into account when evaluating whether there is reasonable suspicion." Government of the Virgin Islands v. Ashby, 2002 WL 31422980 *2 (September 26, 2002) ( quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
In the instant matter, Officer Farley asserts that he had reasonable suspicion to detain Plaintiffs based upon Ashley Stewart employee Felicia Jones' telling him that "she was about to be robbed or her store was about to be held up". N.T. 10/13/04, 102. She believed that two black males in her store were about to rob the store. Id. at 104. Jones' fear of a potential robbery was the only factor in Officer Farley's decision to conduct an investigatory detention, or Terry stop.
Ms. Jones received a telephone call from the Assistant Sales Manager of the Ashley Stewart Philadelphia store, Debbie Williams, that the Philadelphia store had just been robbed. See N.T. 7/6/04, 6. The description she received from Ms. Williams was of a very general nature — two black males; one of whom had a small build, while the other one was a "full build". She remembers a "skullcap being said". Id. at 6-7. When Plaintiffs entered Ms. Jones' store, she feared that these two black men were the "two black males" who had just robbed the Philadelphia store. Plaintiffs did not threaten anyone while they were in the store. Ms. Jones did not see either one of them steal anything or grab anything and place it in a coat or pants pocket. She never saw a weapon on either Plaintiff; she simply saw them shopping. See N.T. 7/6/04, 22-23. However, she summoned Mall security because she felt that her store might be robbed next. She related that "[e]very time there's a situation in the city, I call [mall security]". Id. at 29.
Officer Farley, on patrol in the Cheltenham Mall, received a radio communication that a robbery had been committed in Philadelphia, and the individuals suspected of committing that robbery were in the Ashley Stewart Store in the Cheltenham Mall. See N.T. 7/8/04, 12; N.T. 10/13/04, 74. Upon his arrival at the store, Officer Farley took a position where he could look into the establishment unobserved in order to verify that a robbery was or was not taking place. See N.T. 10/13/04, 74-75, 92. He observed "business as usual". Id. at 75, 92. There was no activity that indicated a robbery was in progress or that anyone was in danger. Id. at 97-98. It is also noted that Plaintiffs observed a security guard sitting in the store at the time who simply sat reading a newspaper while Plaintiffs were in the store. See N.T. 10/13/04, 51. Nothing indicated that Plaintiffs were doing anything other than shopping. Id. at 98. Since nothing seemed out of the ordinary, Officer Farley entered the store to locate Ms, Jones and ask her why the police were called. Id. at 92. At that time, Farley had no additional information from Philadelphia regarding a description of the men who robbed Ashley Stewart's Philadelphia store. See N.T. 10/13/04, 106. After speaking to Ms. Jones, Officer Farley approached Plaintiffs and stated that he would like to speak to them. Plaintiffs were then escorted out of the store. Id. at 18. Upon asking why they were being questioned and detained, Plaintiffs were told by Officer Farley that a robbery had taken place, and the suspects were "two black guys". Id. at 24.
Looking at the totality of circumstances leading up to the investigatory stop, I note that the information Ms. Jones received that the Philadelphia Ashley Stewart Store had been robbed by two black males was of a very general nature. All the information relayed to Cheltenham Mall security was the fact that the Philadelphia store was robbed by two black males. Her "fear" of a potential robbery in her own store and the fact that there were two black men in her store shopping, without more, is hardly enough to arouse reasonable suspicion to justify a Terry stop. Ms. Jones admitted that Plaintiffs were doing absolutely nothing in her store other than shopping. The innocence of Plaintiffs' behavior was also noted by Officer Farley when he responded to Ms. Jones' call for help. He saw "business as usual". He entered the store to ask Ms. Jones why the police were called; he did not go directly to Plaintiffs because he perceived no suspicious behavior. Additionally, the security guard stationed at the entrance of the store apparently observed nothing to cause him to stop reading his newspaper. Furthermore, when Officer Farley asked to speak to Plaintiffs, they cooperated completely. The above facts reveal a lack of independently suspicious behavior on the part of Plaintiffs. Taking all the above facts into consideration, I conclude, from the totality of circumstances, Officer Farley did not possess the requisite level of reasonable suspicion to justify the investigatory stop of Plaintiffs.
The description of the robbers of the Ashley Stewart Store in Philadelphia and the alleged potential robbers of the store in Cheltenham Mall was of "two black males". The evidence does not reveal that there was any reason other than the above description which caused Officer Farley to approach and detain Plaintiffs. There is no indication that racial profiling, per se, was involved in his actions toward Plaintiffs.
c. False Arrest/False Imprisonment
The test for determining whether someone is in custody is "whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest". California v. Beheler, 463 U.S. 1121, 1125 (1983) ( quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1997) ( per curiam)).
The Fourth Amendment prohibits a criminal arrest without probable cause. Probable cause exists when the facts and circumstances known to the arresting officer are sufficient to warrant a reasonable person to believe that an offense has been committed by the suspect. "A court must look at the "totality of the circumstances", and use a "common sense" approach to the issue of probable cause." Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997).
Clearly, Plaintiffs experienced a "restraint on freedom of movement of the degree associated with a formal arrest". Repeated testimony was given by all the parties herein regarding the fact that Plaintiffs were told to remain where they were and that they were not permitted to leave police custody. Though police weapons were not drawn, the officers that had gathered when Plaintiffs were escorted to the Mall area appeared, at one point, to be reaching for their guns. See N.T. 10/13/04, 26, 59-60. Officer Farley was joined by Officer Walsh and others so that at least six officers were positioned around the two Plaintiffs during their detention. Id. at 22, 55. Plaintiffs were taken from the store into a primary walkway in the Mall, thereby obstructing the path of other shoppers, surrounded by multiple police officers and told to remain stationary and quiet. Plaintiffs' offers of cooperation, such as Mr. Bellamy's offering of his wallet and car to be searched and his statement that authorities in South Carolina could be contacted to verify his identity, were rebuffed. Id. at 25-26. Plaintiffs' questions to Officer Farley and the other officers concerning the reasons for their detention and how long they would be required to remain in custody were met with silence. Id. at 57.
Having found no reasonable suspicion to detain Plaintiffs for an investigatory stop, one can hardly find probable cause for an arrest. At the time Plaintiffs were detained, the only information Officer Farley had concerning present alleged criminal activity was that Ms. Jones thought two black males in her store might rob it. Observations prior to Plaintiffs' detention gave no indication that they were involved in the commission of a crime. Much testimony was given concerning the amount of time Plaintiffs were detained. Plaintiffs contend that they were in custody approximately 45 minutes, while Officer Farley, and other defense witnesses, state that it was for a much shorter period of time. The general consensus is that the incident occurred between 2:00 P.M. and 3:00 P.M. Of more significance than the period of time Plaintiffs were detained, is the fact of a detention of two law-abiding citizens without probable cause.
d. Qualified Immunity
Officer Farley asserts that his conduct herein was objectively reasonable in light of the law clearly established at the time of the incident, and he is, therefore, not liable.
A court required to rule upon the qualified immunity issue must consider . . . this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?
. . . . .
[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001).See also Hamilton v. Leavy, 322 F.3d 776 (3d Cir. 2003).
On January 29, 2002, the date of Plaintiffs' detention, it was clear that an investigatory stop could be made only under reasonable suspicion. The testimony of all the parties and the facts surrounding the incident at issue clearly reveal that Plaintiffs' actions were such that Officer Farley described them as "business as usual". Having previously found that Officer Farley did not possess the requisite level of reasonable suspicion to justify the investigatory stop of Plaintiffs, I cannot find that he is entitled to qualified immunity in this matter.
e. Damages
The incident at the Ashley Stewart Store had an adverse effect on both Plaintiffs. Mr. Bellamy testified:
It — first of all, I was in totally disbelief this happened, because it seemed like a nightmare. We are two law-abiding citizens. We were in the — we went there to make a purchase with good intentions. We had credit cards in hand and we were doing everything any other citizen would be doing — any other patron inside that store. Then being subjected to the type of just shock of being surrounded by six police officers. And then at the same time, here we are providing all this information to the police officer, cooperating 100 percent. Went on beyond that and the police officer exercising, in my opinion, was abuse of his authority.
. . . . .
Personally, personally, as an individual, it was just, just devastating. Just emotionally traumatizing to me to go through a situation like that. And I am constantly going back, you know, reliving this incident in my life now. N.T. 10/13/04, 32-33.
Mr. Merke's testimony revealed:
. . . I had been running this whole scenario through my mind, saying that, you know, I can't believe that this happened to me. You hear about it, but when it happens to you, it's a much different reality. And so, I had planned to go visit my family members in North Philly because my father had passed away. Orton was going to drop me off there on his way beck to the airport. And I felt bad because I redirected him. And I told him, Orton, I really need to go to the church. I said take me to my church. And he said, are you going to be all right and I said once I get to the church, I think I'll be all right, but I need to go to the church. So, we left the mall and I immediately went to my church and prayed.
. . . . .
Well, it just — I mean, you know, it recurs in my mind often what happened and I know for a fact that I — I can have a temper, you know, I'm human like anyone else, and it took a lot for me to refrain from lashing out to what was happening to me as a person, as a man, simply because of the color of my skin, that was unacceptable to me. I thought — I went out of my way to find out from an officer whom I was giving respect to why was he doing this to [m]e and it was almost a joke to him, he couldn't identify with me in any way, shape or form that it was hurting, disrespectful, unfortunate that it happened to me, but it did. And, you know, I have no faith in the law. I don't even know at what point — you know, what are my real rights.
. . . . .
. . . I've always been a law-abiding citizen. I've always done what was asked of me by any officer of the law, even security guards. I can honestly tell you, I will always have skepticism about it from hence forth, I do now. I can't say that I have utmost faith in police officers, they are the authority figures. I mean, I don't have any real recourse and my faith in the judicial system has to lie down here in this court and it once was in the hands of police officers, they're supposed to do the right thing. That's shooken ( sic), I mean, I can't change that. I've lived it now, I've experienced it, and it's personal. N.T. 10/13/04, 65-68.
It is evident that Plaintiffs were traumatized by the events which led to the institution of this lawsuit. They suffered embarrassment and humiliation at the hands of Officer Farley; however, except for the new skepticism mentioned by Mr. Merke, Plaintiffs were not permanently harmed. Once they were permitted to go by Officer Farley, life proceeded essentially as it had prior to their detention. Plaintiffs went back into the Ashley Stewart Store and completed their purchases, being waited on by the very clerk who found them "suspicious" earlier. From there they continued shopping in the Mall before Mr. Bellamy boarded his plane to return to South Carolina. Though the memory of being unlawfully detained will remain with Plaintiffs, and they now express skepticism concerning officers of the law, the evidence reveals no actual damages.
ORDER
AND NOW, this 1st day of November, 2004, after conducting a Summary Trial in the above-captioned matter, and finding that Plaintiffs have proved by a preponderance of the evidence that their constitutional rights were violated by Defendant Daniel Farley, it is hereby ORDERED that judgment is entered in favor of Plaintiffs Orton Bellamy and Shawn D. Merke and against Defendant Daniel Farley.Plaintiffs are awarded nominal damages in the amount of one dollar ( $1.00).